Employment Bulletin October 2013

Thursday 24 October 2013

Welcome

The number of employment claims is up 10% on this time last year, according to tribunal statistics published recently by the government.

Sex discrimination and equal pay claims are the biggest risers and the figures suggest that the doubling of the qualifying period for unfair dismissal has not had much of an impact on the number of claims, which are, in fact, slightly up on the previous quarter. Whilst it is early days, this does call into question the justification given for the increase in the qualifying period when it was brought in, namely that it would help reduce the (perceived) landslide of claims…

The figures cover April-June, so do not cover July – when it seems a large number of claims were filed in order to beat the imposition of fees – or August, when the word on the tribunal street is that following the introduction of fees, the numbers fell off a cliff. We shall see when the next figures are out, but nothing is ever certain in the world of employment law!

Farewell third party harassment law

As of 1 October 2013, an employer can no longer be liable for harassment of a worker by a third party. Previously, employers became liable if a third party such as a customer or supplier harassed a worker on three occasions, and the employer failed to take reasonable steps to stop it.

The relevant part of the Equality Act 2010 – which has often been viewed as arcane and unhelpful in practice – has been repealed. This doesn’t mean that employers can blithely turn a blind eye to things that happen between customers, suppliers and workers, since employers remain as ever under the duty to protect employees in the workplace.

Failing to prevent harassment can be a fundamental breach of contract, and potentially an employer’s failure to act could itself amount to actionable harassment, for instance as unwanted conduct related to sex or race.

So, in reality, best practice has not changed and another much-trumpeted reduction in “red tape” will have little impact on employers’ day to day existence.

Shambolic? Yes. Discriminatory? No

Osoba v Hertfordshire Police

Hertfordshire Police was planning redundancies and redeployments. Mr Osoba, who had worked there for 30 years, was asked if he was considering retiring or whether he wanted to stay in his role or be redeployed. He wanted to stay but was made redundant.

Mr Osoba brought an age discrimination claim, arguing that the points-based matrix system which had been devised had been deliberately manipulated to score him lower than his colleagues.

The employment tribunal found that the process has been “shambolic”, with inconsistencies in the scoring and elements of incompetence, but not discriminatory. The employer had tried to be fair, had admitted mistakes and those mistakes did not put Mr Osaba at a particular disadvantage compared with colleagues who were not approaching retirement.

The Employment Appeal Tribunal upheld the decision – even though the burden of proof had shifted to Hertfordshire Police, who had to prove that there was no discrimination, their explanation – essentially that they had meant to be fair but had made some mistakes in the way they went about it – was enough.

An encouraging decision for employers, although it is of course best to get the process right in the first place!

Internal appeal cured discrimination

Little v Richmond Pharmacology

The appeal stage of disciplinaries and grievances sometimes gives employees a chance to turn things in their favour. It is also a sometimes-undervalued tool for employers to put right any mistakes they might have made earlier on in the process.

For Richmond Pharmacology, the appeal was all-important. Ms Little had returned from maternity leave and asked to work part-time. Richmond refused. She appealed that decision, but resigned before the appeal hearing took place. The appeal resulted in her being offered a three-month trial period during which she could work part-time. Ms Little turned this down, saying that her resignation stood.

She claimed constructive unfair dismissal (which was out of time and so could not be heard) and indirect sex discrimination (which she lost, but appealed).

The Employment Appeal Tribunal held that the tribunal had been right to find that she had not suffered a particular disadvantage as a result of the requirement that sales executives should work full-time. The employer had not applied that requirement to her – it had offered her part-time work.

So here Richmond managed to cure that particular detriment before it was too late, which is a very valuable reminder for employers that the appeal represents a golden opportunity to safeguard their position.

Employment status

Ahmed v Wincanton Group

It’s not uncommon for employers to try to avoid creating employment relationships by inserting “clever” wording into the contractual arrangements. Increasingly, however, the courts are looking to the realities of the relationship, over the contractual form.

When Mr Ahmed started working for Wincanton he was given a document containing various terms. One term was that there was no intention to create a contract of employment. Another was that the company had no obligation to offer work assignments but that, if Mr Ahmed accepted work, he’d be deemed to be an employee while it lasted.

Things went wrong, and Mr Ahmed brought claims. A race discrimination claim was not successful and for an unfair dismissal claim to proceed, he needed to be found to have been an employee. The tribunal agreed with Wincanton Group that he had not been. The initial words of the document said as much, so he wasn’t eligible to bring an unfair dismissal claim.

The Employment Appeal Tribunal, however, allowed Mr Ahmed’s appeal. The tribunal hadn’t properly analysed all the terms of the contract, or how the arrangement worked in practice, and had not been referred to the leading case on the area. The case will now start afresh in a new tribunal and this is an important reminder that employment status is as much about substance as form.

Surrogacy and maternity leave

Case C-167/12 – CD v ST

Employers might be forgiven for thinking that the law on maternity leave is complex enough already, but further legislation may be necessary after this case. A surrogate mother whose employer denied her paid leave could be paving the way for surrogacy rights to be brought on a par with adoption and maternity.

While women who adopt children get the same rights as mothers who give birth, surrogacy is not covered by legislation. An employment tribunal has asked the European Court of Justice to decide if it ought to be.

The latest is that the surrogate mother seems likely to win and to open the doors for others to be allowed maternity leave too. The Advocate General, whose recommendations the European Court usually (but not always) follows, has said that even where a surrogate mother doesn’t breastfeed her baby she is entitled to maternity leave if she takes that baby into her care after its birth.

The leave would effectively be split between the birth mother and the surrogate mother so that the overall entitlement would not be doubled by including surrogacy in the mix.

And finally….

In a case which is bound to create column inches in the Daily Mail, a Danish court is asking the European Court of Justice to decide if obesity is covered by EU legislation and, if so, in what circumstances protection could apply.

We await with interest the headlines that will be produced if the ECJ decides that it is covered…